Mukasey’s Law

Much of the constitutional struggle that engulfed the English-speaking world in the seventeenth century revolved around two fairly simple phrases. One was “no man is above the law,” and the other “the king can do no wrong.” Each of these expressions reflected a fundamentally different notion of the rule of law, and they could not be reconciled. The banner of Parliament and Commonwealth stood for the idea that all were bound and beholden to the law, and the decapitation of the sovereign Charles Stuart following his trial and conviction for high crimes was pursued to give vivid witness to that principle. But no sooner was the restoration in place, than the monarchical concept of a king above the law was resurrected. The idea of a king violating the law was a nonsense, they said, because the king was the law. Post-Restoration Britain found a series of legal fictions to address the problem of misconduct by the state, but in concept this often turned on the notion that the king commanded compliance with the law so that unlawful conduct could not be the king’s. The American Revolutionaries, however, took up once more the notions of the Civil War. For them the king was a tyrant, his offending conduct a violation of the natural law. And the notion that the “king can do no wrong” was an insufferable falsehood. Tom Paine put this most powerfully when he wrote these lines in Common Sense (1776):

But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.

This notion seemed settled well enough on the western side of the Atlantic. It meant that there was no absolute immunity for those who exercise the powers of government. Those powers fell into private hands for a limited term and pursuant to a popular mandate. That mandate could be revoked. And it never included the power to violate the law.

But in America today, the mentality of courtiers has reappeared, and many of them seem bent on reassembling the fragments of that old crown that our ancestors brushed from the head of a Hanoverian usurper. They’re offering that crown up to a new King George. And the new attorney general, barely three months on the job, is installing himself not as a law officer to a republic but as a lackey bent on undoing not one revolution, but three.

We have seen the evidence of this at many steps. First, Michael Mukasey offered incomprehensible explanations for his non-views about the legality of torture techniques. He played a game of magic tricks with the oversight committees in the House and Senate. He couldn’t venture an opinion today because no request had been made for it. And he had no idea what opinion he would offer tomorrow either. As to opinions in the past, alas, they were not his opinions, but he had looked at them and they seemed right. But of course, he really couldn’t say what they were. It all had the feel of a hallucinatory tea party from the pen of Lewis Carroll. Words lost any solidity, familiarity or sense. Suddenly words felt like miasmic gas from the Prypiet Marshes.

What were those legal principles that allowed the Justice Department to find that torture was not torture, and that torture was therefore lawful? When we pull back the curtains, and shine a bright light, we find it rested on the same royal prerogative that Charles Stuart maintained all the way up the steps to the scaffold. Apparently the king can do no wrong. And evidently, the king determines what the law is. And when the king has made his determination, then it is binding on the attorney general, who is, apparently, no more than an extension of the royal will.

But there was never any doubt as to the purpose of Mukasey’s maneuvers. He was keen on maintaining the Justice Department’s formal advice sanctioning torture techniques actually used. His opinion was, after all, the only thing that stood between Dick Cheney and a war crimes indictment. There was nothing remotely esoteric about it. And he fully appreciated that.

And last week Attorney General Mukasey invited us to witness another exercise in seventeenth century royalist jurisprudence. The House Judiciary Committee subpoenaed Joshua Bolten and Harriet Miers to testify in connection with its inquiry into the U.S. Attorney’s scandal. So let’s be very clear: the subject matter was the potentially criminal misdirection of the Justice Department itself by the White House, since the probe seeks to ascertain whether there was improper interference with criminal investigations. These are issues within the constitutional remit of the House both under its oversight and impeachment powers. Bolten and Miers failed to appear (quite literally, they did not appear and decline testimony based on an instruction from the president, they did not appear), meaning that their act of contempt was absolute and not subject to any plausible argument of privilege. The House voted the contempt sanction, and it was transmitted to the Justice Department. Mukasey declined action. Here’s how Jonathan Turley describes Mukasey’s conduct in an op-ed in the Los Angeles Times:

Mukasey refused to allow contempt charges against White House Chief of Staff Josh Bolten and former White House counsel Harriet E. Miers to be given to a grand jury. Bolten and Miers stand accused of contempt in refusing to testify before Congress in its investigation of the firings of several U.S. attorneys in 2006. Mukasey wrote to House Speaker Nancy Pelosi that their refusal to testify could not be a crime because the president ordered them not to testify under executive privilege.

Under this logic, no official can be prosecuted for contempt as long as a president ordered them to commit the contempt — even if the president’s assertion of privilege is clearly invalid or incomplete. In this case, many experts have expressed skepticism that all or any of President Bush’s assertions of privilege in this case would be upheld.

When Mukasey blocked the contempt cases, many legal experts were filled with rage. But I came to see his rationales as objects of beauty rather than scorn. When one combines the two decisions, they fit neatly into Mukasey’s Paradox. Mukasey was saying that lawyers could not be charged criminally because the president ordered them to commit the act — and that the president could not be charged criminally because lawyers told him he could do it.

Turley is correct about this. Mukasey is doing something mind-bogglingly preposterous: he is crafting a Nuremberg Defense for Lawyers. If the president ordered you to do it, you are shielded from any criminal law consequence. In fact you don’t even have to appear before the Committee and invoke a claim of Executive Privilege. You are entitled to rely on your sovereign’s whim and treat Congress with the derision and contempt which is their due. Charles Stuart would be impressed, no doubt.

In fact Mukasey’s letter setting out what passes for a rationale is really worth studying. Even its language seems ready to erupt into the “royal we” at every new paragraph. And it follows the time-honored royal prerogative of simply making up facts when reality is inconvenient. So we learn that Harriet Miers was instructed by the President not to appear. But of course Harriet Miers is a lawyer at a private Dallas law firm, she is not an employee of President Bush’s or of the United States Government – she departed the White House under a cloud some time back. That is a very inconvenient fact, so one pass of the royal wand, and it’s gone.

For Michael Mukasey the view that Tom Paine announced and the Framers embraced requires some emendations. It is not the law that is king in America. Rather it is the president who has assumed the royal prerogatives of the king. He does not serve the law and cannot be made to obey it, because he is the law. And if he directs others to disobey the law, then their conduct can likewise be no crime, because “the king can do no wrong.” Perhaps Mukasey has forgotten the outcome of those three revolutions. Perhaps he requires a reminder.

“He could be one of a million beach-bound, black-socked Florida retirees, not the man who, by some odd happenstance of life, possesses the brain of Albert Einstein — literally cut it out of the dead scientist's head.”